Marcus: What the court got wrong

WASHINGTON – The genius of the Constitution is to establish zones in which the rights of the minority are protected against majority oppression: freedom of speech and religion, for example, or equal protection of the laws.

The role of the Supreme Court is, to borrow Chief Justice John Roberts’ metaphor, to umpire the play within those zones, calling fouls on the majority when it oversteps.

But there are occasions when the umpire’s call, no matter how well intentioned, is influenced – distorted, even – by pre-existing assumptions and biases. The current Supreme Court term offers painful examples of this phenomenon in two recent cases: one upholding Michigan’s ban on affirmative action; the other, just this week, upholding sectarian prayers at local government meetings.

The majority in these very different cases got it wrong, yet for a similar reason. The justices simply failed to understand the situation from the perspective of those who find themselves, by dint of race or religion, in the minority.

Let’s start with the newest case, about the town of Greece, New York, and its practice of beginning board meetings with a prayer. Specifically, and almost always, a prayer by a Christian minister, often explicitly sectarian: “We acknowledge the saving sacrifice of Jesus Christ on the cross,” one guest chaplain said. “We draw strength, vitality and confidence from his resurrection at Easter.” Board members would regularly stand, bow their heads and make the sign of the cross.

Of the invocations given at 120 monthly meetings, only four were delivered by non-Christians – all in 2008, after the plaintiffs in the case complained.

For the five conservative justices in the Supreme Court majority, this was not a problem. “Although most of the prayer givers were Christian,” Justice Anthony Kennedy wrote, “this fact reflected only the predominantly Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths.”

For those made uncomfortable, for those who might have felt excluded, Kennedy’s advice boiled down to: Suck it up. “Adults often encounter speech they find disagreeable,” he wrote, “and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.”

No member of a religious minority could possibly have written these words. We understand: America may not be a Christian nation, but it is a predominantly Christian nation. But we live here, too – we are Americans, too – and the Constitution, which prohibits elevating one religion over another, demands some sensitivity to this fact.

Being asked to bow your head and pray in the name of Jesus Christ our Lord feels like no big deal to Kennedy & Co. It does to me. To dismiss this discomfort, in the snarky assessment of Justice Samuel Alito, as “really quite niggling” is to ignore that reality.

As Justice Elena Kagan tartly wrote for the dissenters (three Jewish justices and Justice Sonia Sotomayor), “Honest oversight or not, the problem remains: Every month for more than a decade, the board aligned itself, through its prayer practices, with a single religion. That the concurring opinion thinks my objection to that is ‘really quite niggling’ says all there is to say about the difference between our respective views.”

The affirmative action case betrays a similar, perhaps unconscious, insensitivity. In upholding a state constitutional ban on considering race in admission to public universities, the majority, Sotomayor alleged, engaged in wishful thinking that ignores the continuing relevance of race in American society.

“Race matters,” Sotomayor wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’”

To Roberts’ facile observation, in an earlier Seattle school integration case, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Sotomayor retorted: “This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Robert Burns wrote of the gift “to see oursels as ithers see us.” To be a wise justice demands a different talent: to see others as they see themselves. ■